PEOPLE v. RUNNINGBEAR, 753 P.2d 764 (Colo. 1988)

The People of the State of Colorado, Petitioner, v. Judy Runningbear, Respondent.

No. 86SC78Supreme Court of Colorado.
Decided April 11, 1988.

Certiorari to the Colorado Court of Appeals

Duane Woodard, Attorney General, Charles B. Howe, Deputy Attorney General, Richard H. Forman, Solicitor General, Virginia Byrnes Horton, Assistant Attorney General, Maureen Phelan, Assistant Attorney General, for Petitioner.

Forrest W. Lewis, Scott D. Wolfe, for Respondent.

EN BANC

JUSTICE ERICKSON delivered the Opinion of the Court.

[1] Respondent Judy Runningbear was convicted by a jury of attempt to commit second-degree murder, first-degree burglary, aggravated robbery, first-degree assault, and conspiracy to commit aggravated robbery. Prior to trial, respondent moved to dismiss the charges alleging that she was denied her statutory right to a speedy trial, section 18-1-405, 8 C.R.S. (1978 1982 Supp.). The district court denied the motion, but the court of appeals reversed the convictions and dismissed the charges with prejudice because of a denial of the statutory right to a speedy trial. We granted certiorari to determine whether the granting of a defendant’s motion for severance immediately before trial can be grounds for extending the statutory right to a speedy trial under section 18-1-405 for a reasonable period of time based upon docket congestion. We reverse and remand the case to the court of appeals with directions to reinstate the judgment of conviction and the sentence imposed by the district court.

I.
[2] On August 22, 1982, during a burglary and aggravated robbery, a man and two women cut the throats of two victims. Despite the severity of their wounds, both victims survived. Runningbear and two others were arrested and charged with attempt to commit first and second-degree murder, section 18-2-101, 8 C.R.S. (1978); first-degree burglary, section 18-4-202, 8 C.R.S. (1978 1982 Supp.); aggravated robbery, section 18-4-302, 8 C.R.S. (1978); first-degree assault, section 18-3-202, 8 C.R.S. (1978 1982 Supp.); and conspiracy to commit aggravated robbery, section 18-2-201, 8 C.R.S. (1978).

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A. [3] The Chronology
[4] On December 8, 1982, Runningbear was arraigned and pleaded not guilty to the charges. A trial date for Runningbear and her two codefendants was set for May 3, 1983. Thereafter, the three defendants filed several motions and the trial court reserved March 14, 1983, for a motions hearing. On March 14, 1983, with the defendants’ consent, the motions hearing was rescheduled to April 6, 1983, to accommodate Runningbear’s counsel who had to argue motions in a first-degree murder trial. On March 28, 1983, the respondent joined motions for severance filed earlier by her codefendants and sought a separate trial.[1] The motions hearing was reset for April 11, 1983, and later changed to May 11, 1983. The change in the date of the motions hearing was made because a codefendant had hired private counsel who could not enter the case until court-appointed counsel withdrew and because Runningbear’s attorney was engaged in a murder trial from April 11, 1983, until May 5, 1983. The trial date was also rescheduled to June 6, 1983 from May 3, 1983.

[5] On May 11, 1983, the court granted the severance motions of all three defendants since the prosecution concededly intended to offer prejudicial evidence that would be admissible against only one defendant.[2]
Runningbear’s counsel agreed to a second trial date of July 18, 1983,[3]
and the other two defendants were to be tried on June 6, 1983, and August 2, 1983. On July 18, 1983, Runningbear’s trial date was changed to August 15, 1983, because another case had only two days remaining to comply with the requirements of the speedy trial act, section 18-1-405, 8 C.R.S. (1978 1982 Supp.).[4] The trial judge also believed that under the speedy trial act there was a reasonable period of time after granting the motion for severance in which to bring Runningbear to trial.

[6] On August 2, 1983, prior to the scheduled trial date, Runningbear filed a motion to dismiss the charges because she was denied a speedy trial. § 18-1-405; Crim. P. 48(b). The court denied the motion on August 10, 1983, finding that Runningbear had not demonstrated any prejudice from the delay and that the delay was not “unreasonable in light of the history of this case, [and] the fact that [a codefendant] consumed seventeen days of trial time.”

[7] Runningbear’s jury trial commenced on August 17, 1983. She was convicted of attempt to commit second-degree murder, first-degree burglary, aggravated robbery, first-degree assault, and conspiracy to commit aggravated robbery, and sentenced to serve concurrently eight years on the first charge, fifteen years on each of the next three charges, and four years on the last charge.

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B. [8] Resolution on Appeal
[9] In dismissing the charges and the conviction against Runningbear, the court of appeals concluded that by consenting to the July 18 trial date the defendant extended the speedy trial period from June 8, 1983, to July 18, 1983. See People v. Bell, 669 P.2d 1381 (Colo. 1983); §18-1-405(6)(f); Crim. P. 48(b). The continuance to August 15, 1983, however, was deemed to violate the speedy trial statute because Runningbear did not agree to the new trial date and docket congestion does not relieve the district attorney and the trial court of the obligation of complying with section 18-1-405. See Bell, 669 P.2d 1381 Carr v. District Court, 190 Colo. 125, 543 P.2d 1253 (1975).

III. [10] The Speedy Trial Act
[11] Section 18-1-405, 8 C.R.S. (1978), provides in relevant part:

[12] “(1) Except as otherwise provided in this section, if a defendant is not brought to trial on the issues raised by the complaint, information, or indictment within six months from the date of the entry of a plea of not guilty, he shall be discharged from custody if he has not been admitted to bail, and, whether in custody or on bail, the pending charges shall be dismissed, and the defendant shall not again be indicted, informed against, or committed for the same offense, or for another offense based upon the same act or series of acts arising out of the same criminal episode.

[13] . . . .

[14] “(5) To be entitled to a dismissal under subsection (1) of this section, the defendant must move for dismissal prior to the commencement of his trial or prior to the entry of a plea of guilty to the charge or an included offense. Failure to so move is a waiver of the defendant’s rights under this section.

[15] . . . .

[16] “(6) In computing the time within which a defendant shall be brought to trial as provided in subsection (1) of this section, the following periods of time shall be excluded:

[17] . . . .

[18] “(f) The period of any delay caused at the instance of the defendant. . . .”

[19] See also Crim. P. 48(b).[5]

[20] In determining whether a defendant has been afforded a speedy trial, each case must be viewed individually. Williamsen v. People, 735 P.2d 176
(Colo. 1987); People v. Sanchez, 649 P.2d 1049 (Colo. 1982). A delay is excludable under section 18-1-405(6)(f) if it is caused by, agreed to, or otherwise created at the instance of the defendant. People v. Bell, 669 P.2d 1381 (Colo. 1983); see Jones v. People, 711 P.2d 1270 (Colo. 1986). The trial court and prosecution have the burden of insuring compliance with section 18-1-405. People v. Beyette, 711 P.2d 1263 (Colo. 1986); Marquez v. District Court, 200 Colo. 55, 613 P.2d 1302 (1980). Here, the six-month period commenced on December 8, 1982, when Runningbear entered a plea of not guilty, and it expired on June 8, 1983, unless the period was tolled for excludable delays.

[21] The trial court found that the speedy trial statute was tolled for a reasonable period of time after the severance and that the delay in trying Runningbear was not unreasonable. Runningbear concedes that the forty-day period between June 8, 1983 (the expiration of the statutory six-month period) and July 18, 1983 (the trial date she agreed to) must be excluded from the speedy trial computation under section 18-1-405(6)(f). Runningbear contends, however, that following the granting of her motion for a separate trial she had to be tried no later than July 18, 1983. She argues that docket congestion and not her actions caused the continuance from July 18, 1983, to August 15, 1983. Finally, she asserts that the trial court’s holding impermissibly requires a defendant to choose

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between the right to a speedy trial and the right to relief from a prejudicial joinder under Crim. P. 14.

A.
[22] Section 18-1-405 does not provide guidance in determining the time permitted under the speedy trial act to try a defendant after a defense motion for a severance is granted. Delays caused by a severance granted shortly before or during trial create substantial obstacles to compliance with the speedy trial statute. Although a motion for severance under Crim. P. 12(b)(3) must “be made within twenty days following arraignment,” the deadline is not strictly enforced. The grounds for severance often arise more than twenty days after arraignment. See II ABA Standards for Criminal Justice, Speedy Trial, §§ 13-3.1 to -3.3 (1986) (recognizing that motion for severance must be made before trial, but may be made before or at close of evidence, if based upon a ground not previously known). When a trial court grants a motion for a severance shortly before or during trial, the court is confronted with the problem of scheduling at least one and often several new trials within the confines of the speedy trial deadlines imposed by section 18-1-405.

[23] In determining the effect of a severance on section 18-1-405, our primary task is to ascertain and effectuate the intent of the General Assembly. People v. Guenther, 740 P.2d 971 (Colo. 1987); People v. District Court, 713 P.2d 918 (Colo. 1986). To divine legislative intent, a statute should be interpreted to give consistent, harmonious, and sensible effect to all of its parts. People v. District Court, 713 P.2d at 921; Massey v. District Court, 180 Colo. 359, 506 P.2d 128 (1973). We presume that the General Assembly intends a just and reasonable result when it enacts a statute, and a statutory construction that leads to an absurd result will not be followed. Ingram v. Cooper, 698 P.2d 1314 (Colo. 1985); §2-4-201(1)(c), 1B C.R.S. (1980); see People v. Sanchez, 649 P.2d 1049
(Colo. 1982) (section 18-1-405 and Crim. P. 48 must be construed to reach a just result). The rule of strict construction of penal statutes will not be used to defeat the General Assembly’s intent. Oliynk v. People, 642 P.2d 490 (Colo. 1982); People v. Meyers, 182 Colo. 21, 510 P.2d 430
(1973).

[24] Section 18-1-405 was intended to effectively implement the constitutional right of an accused to a speedy trial and to prevent unnecessary prosecutorial and judicial delays in the prosecution of a criminal case. People v. Sanchez, 649 P.2d 1049 (Colo. 1982); People v. Moye, 635 P.2d 194 (Colo. 1981); Sweet v. Myers, 200 Colo. 50, 612 P.2d 75
(1980). The General Assembly, however, did not intend the speedy trial provisions to be applied in “a wooden or mechanistic fashion.” Sanchez, 649 P.2d at 1052. The countervailing interest in effective enforcement of criminal laws must also be considered. Id.; see II ABA Standards for Criminal Justice, Speedy Trial, § 12-2.1, Commentary (1986).

[25] The effect of scheduling delays caused by the granting of a motion for severance on the defendant’s statutory right to a speedy trial has been analyzed differently in state and federal courts. Federal courts, pursuant to 18 U.S.C. §§ 3161 to -74 (1982), exclude from the Speedy Trial Act’s seventy-day limitation all time between the filing of the motion and the conclusion of the hearing on the motion. Henderson v. United States, 476 U.S. 321 (1986); United States v. Welch, 810 F.2d 485 (5th Cir. 1987); see United States v. Handley, 644 F. Supp. 1165 (N.D. Ala. 1986) (excluding time between joint trial date and new trial date following severance as sua sponte continuances under section 3161(h)(8)(A)); State v. Hawley, 256 Ind. 244, 268 N.E.2d 80 (1971) (applying federal standard). Other jurisdictions begin a new speedy trial period on the date the motion is granted, e.g., People v. Grant, 68 Ill.2d 1, 368 N.E.2d 909 (1977), or exclude a reasonable period of time after severance in which to reschedule the case for trial, State v. Hopper, 25 Ariz. App. 65, 540 P.2d 1284 (1975).

[26] In our view, the granting of Runningbear’s motion for severance shortly before

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the scheduled trial date caused delays “at the instance of the defendant” and gave the prosecution a reasonable period of time in which to try Runningbear. Under the unusual circumstances of this case, to require the prosecutor to comply with the original six-month speedy trial period would cause the statute’s goal of implementing the constitutional right to a speedy trial to be used unfairly and would ignore the state’s countervailing interest in law enforcement. An accused should not be able to use a motion for severance to “run time off” the speedy trial clock and defeat compliance with the speedy trial statute. People v. Martin, 732 P.2d 1210 (Colo. 1987). The right to a speedy trial under the sixth amendment of the United States and section 16, article II of the Colorado Constitutions cannot be used to prevent an accused from being tried when the delay in issue was the sole product of a defendant’s motion for severance. See Barker v. Wingo, 407 U.S. 514 (1972) (constitutional right to speedy trial determined by ad hoc balancing of four factors: the defendant’s assertion of right to speedy trial, the length of delay, the reasons for delay, and the prejudice to the defendant); People v. Small, 631 P.2d 148 (Colo.) (same), cert. denied, 454 U.S. 1101 (1981); see also State v. Smith, 59 Haw. 456, 583 P.2d 337
(1978) (four-month delay caused by granting of defendant’s motion for severance did not violate constitutional right to speedy trial); Cain v. Commonwealth, 554 S.W.2d 369 (Ky. 1977) (delay from June 9, 1976, to October 13, 1976, caused by severance did not violate constitutional right to speedy trial).

[27] The General Assembly has recognized the problems inherent in motions joining or severing defendants for trial. Under section 18-1-405(6)(c), a reasonable period of delay following the joinder of defendants for trial is excluded from the speedy trial period provided that the speedy trial period has not run on any codefendant and there is good cause for not granting a severance. The exception recognizes the scheduling problems posed by joining defendants with different speedy trial periods. When a severance is granted shortly before or during trial, the trial judge must schedule multiple trials for defendants with different speedy trial deadlines and labor under the same time constraints that exist in joining defendants for trial. Accordingly, to cope with scheduling problems a reasonable period of delay should be excluded from the speedy trial period following a severance granted shortly before or during trial. See § 18-1-405(6)(e) (excluding reasonable period of delay not in excess of three months following a mistrial); see Martin, 732 P.2d 1210
(§ 18-1-405(6)(d) excludes reasonable period of time after voluntary unavailability or absence of defendant); People v. Sanchez, 649 P.2d 1049
(Colo. 1982) (same).

[28] In excusing the scheduling problems caused by docket congestion under the facts of this case, we are not unmindful of our past holding that docket congestion does not relieve the district attorney from the obligation of complying with the speedy trial statute. See People v. Bell, 669 P.2d 1381 (Colo. 1983); People v. Pipkin, 655 P.2d 1360 (Colo. 1982); Carr v. District Court, 190 Colo. 125, 543 P.2d 1253 (1975). We must, however, recognize and effectuate the intent of the General Assembly when it enacted section 18-1-405. In Pipkin, we found that the Assembly intended to implement the American Bar Association Standards for Criminal Justice relating to speedy trial when it adopted section 18-1-405. 655 P.2d at 1360. Standard 12-2.3(b) excludes a period of delay resulting from docket congestion when the congestion is caused by exceptional circumstances.[6] II ABA Standards for Criminal Justice, Speedy Trial, § 12-2.3(b) (1986). In our view, when a defendant’s motion for severance is granted shortly before or during

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trial, exceptional circumstances exist and docket congestion may be considered to determine the reasonable period of delay that tolls the speedy trial statute.[7]

B.
[29] In this case, the trial court found that under the circumstances the ninety-eight-day delay between the granting of the motion for severance and the trial of Runningbear was reasonable. In our view, this finding is supported by the record, and must be upheld on appeal. Williamsen v. People, 735 P.2d 176 (Colo. 1987); see People v. Sanchez, 649 P.2d 1049
(Colo. 1982) (determination of reasonableness under section 18-1-405
considers reasons and necessity for delay, length of delay, and prejudice to the defendant caused by the delay); see Martin, 732 P.2d at 1214 Pinelli v. District Court, 197 Colo. 555, 595 P.2d 225 (1979) (two-month delay reasonable where trial court set retrial on earliest date available on court’s calendar).

[30] Accordingly, the judgment of the court of appeals is reversed, and the case is remanded to the court of appeals with directions to reinstate the judgment of conviction and sentence imposed by the district court against Runningbear.[8]